Calcutta High Court (Appellete Side)
Ram Dayal Rai vs Union Of India & Ors on 16 January, 2020
Author: Md. Nizamuddin
Bench: Md. Nizamuddin
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice Md. Nizamuddin
W.P. No. 29124 (W) of 2014
Ram Dayal Rai
Vs.
Union of India & Ors.
For the Petitioner :- Mr. Soumya Majumdar, Adv.
Ms. Pampa Dey (Dhabal), Adv.
For the Respondents :- Mr. Kumar Joyti Tewari, Adv.
Mr. Tapan Bhanja, Adv.
Judgement On :- 16.01.2020
MD. NIZAMUDDIN, J.
Heard Learned Advocates appearing for the parties. In this Writ Petition, the petitioner has challenged the impugned order dated 25th January, 2014 passed by the respondent/appellate authority reducing the penalty imposed by the disciplinary authority on 26th August, 2013, from "compulsory retirement from service with 80% of Pension and 80% of Gratuity" to "compulsory retirement from service with full pensionary benefits as admissible on the date of compulsory retirement" and the impugned order dated 22nd August, 2014 passed by the Revisionary Authority upholding the order of the Appellate Authority.
Relevant facts involved in brief in the instant Writ Petition as appears on perusal of relevant records are hereunder.
The petitioner joined the Central Industrial Security Force (CISF) in the year 1991 in Barauni as a constable.
The petitioner was fastened with a charge-sheet under Rule 36 of the CISF Rules 2001, on 21st March, 2013 containing the following two Articles of Charges which are as follows:
" ARTICLES OF CHARGE - I No. 914520452 HC/GD/Ram Dayal Rai of CISF Unit KoPT Kolkata was detailed in "A" shift duty on 24.02.2013 from 0500 hrs to 1300 hrs at NSD Gate No. 09 along with No. 964400056 ASI/Exe Prasanta Kumar Pramanik. On 24.02.2013 at around 1040 hrs a Tata Magic vehicle Registration No. WB-03C-5170 reported at the gate for entry inside the port. Before entry, driver (Mr Kamrul Saik) of the above said vehicle gave Rs. 100/- to Mr. Parshu Ram Thakur, Civilian owner of Barber shop (near Gate No. 09, NSD, KoPT). No. 914520452 HC/GD Ram Dayal Rai detailed at the gate made a gesture to Mr. Parshu Ram Thakur to keep it with him.
The above act on the part of No. 914520452 HC/GD Ram Dayal Rai amounts dereliction of duties, indiscipline and an act of unbecoming of a member of a disciplined Force of the union like CISF.
ARTICLE OF CHARGE - II No. 914520452 HC/GD/Ram Dayal Rai of CISF Unit KoPT Kolkata was detailed in "A" shift duty on 24.02.2013 from 0500 hrs to 1300 hrs at NSD Gate No. 09 along with No. 964400056 ASI/Exe Prasanta Kumar Pramanik. On 24.02.2013 at around 1230 hrs a Tata Magic vehicle Registration No. WB-03C-5170 reported, which was allowed to exit from the gate without proper checking. The said vehicle was found carrying 20 items unauthorisedly without any valid pass/permission.
The above act on the part of No. 914520452 HC/GD Ram Dayal Rai amounts to gross misconduct, dereliction to duty, gross negligence and ac act of unbecoming of a member of a disciplined Force of the union of like CISF."
On receipt of charge memorandum on 22.03.2013, the petitioner submitted his reply on 01.04.2013 denying the charges levelled against him which was found not satisfactory by the respondents. An Enquiry Officer was appointed. Enquiry Officer submitted his report to the Disciplinary Authority on 09.07.2013 holding, inter alia, that Charge No. I as 'Not Proved' and Charge No. II as 'Proved'. The copy of the Enquiry Report was supplied to the petitioner. Petitioner submitted his representation to the Enquiry Report on 30.07.2013. Finally the disciplinary Authority awarded the petitioner the penalty of compulsory retirement from service with 80% pension and 80% Gratuity by its order dated 26.08.2013.
Challenging the aforesaid order passed by the Disciplinary Authority, the petitioner filed an appeal before the Appellate Authority on 10.09.2013. The Appellate Authority by its order dated 25th January, 2014, modified the order of the disciplinary authority reducing the penalty to the extent of Compulsory Retirement from service with full pensionary benefits as admissible on the day of compulsory retirement. Relevant portion of the said order of the Appellate Authority dated 25th January, 2014 are hereunder:
"6. .............. I have carefully considered the appeal preferred by the appellant, the departmental proceedings files, findings of the Enquiry Officer and other related documents held on record and I have applied my mind to the case. I find that the Article of Charge No. II levelled against the appellant was held proved on the basis of overwhelming evidence held on record. The Enquiry Officer had conducted the enquiry in a fair and judicious manner and afforded him all reasonable opportunities to rebut the adverse evidence and to submit sufficient material in support of his defense. He, however, failed to do so. There is also no material irregularity or miscarriage of justice in this case. Allowing the materials through his area of responsibility without proper check raises question about faithful discharging of his duties and such act is a stigma on the Unit as a whole. The Disciplinary Authority has passed the Final Order after considering all aspects of the case held on records and awarded the penalty "Compulsory retirement from service with 80% pension & 80% Gratuity" vide Final Order No. V- 15014/Maj-02/KoPT/Disc/RDR/2013/6297 dated 26.08.2013 which is speaking and comprehensive wherein the specific charge has been categorically established on the basis of sufficient evidences held on record. The offence committed by the appellant is grave in nature, which is highly inconsistent with the faithful discharge of duties and prejudicial to discipline of the Armed Force. A member of the Force is bound to maintain high degree of discipline, absolute integrity and extreme devotion to duties as per the conditions of service but he has proved himself to be otherwise. After taking into consideration all aspects of the case and cogitating over the prosecution and defense version, the Disciplinary Authority has passed the final order.
7. .................. As the instant penalty is found to be on higher side, on humanitarian ground, I, the undersigned in exercise of powers conferred on me under rule 52 of CISF Rules, 2001 hereby reduce the above penalty to the extent of "Compulsory retirement from service with full pensionary benefits as admissible on the date of compulsory retirement" as per rule to meet the ends of justice."
Challenging the aforesaid order of reduction of penalty by the Appellate Authority, petitioner filed Revision Application which was rejected by the authority by order dated 22nd August, 2014, relevant portion of which are hereunder:
"07. I have examined the revision petition submitted by the petitioner and other documents available in the proceeding file. I find the article of charge - II levelled against the petitioner has been proved on the basis of evidences adduced during the course of departmental enquiry. The petitioner was afforded all reasonable opportunities to defend himself. There has not been any procedural irregularity in conducting the DE by the Enquiry Officer and the Disciplinary Authority in dealing with the case. The principles of natural justice have been duly observed in letter and spirit at every stage of the DE. The charges proved against the petitioner tantamount to gross misconduct, dereliction of duty, gross negligence and an act of unbecoming of a member of a disciplined Force. The Disciplinary Authority has passed the final order taking into consideration all aspects of the case. The Appellate Authority has also considered appeal petition filed by petitioner on merit and passed a reasoned speaking order. The penalty so modified by the Appellate Authority is well commensurate with the gravity of the proven act of misconduct. The petitioner has not come up with any cogent and logical reason that would warrant any consideration. As such, the revision petition dated 10.02.2014 submitted by the petitioner is rejected, being devoid of merit."
The petitioner challenging the impugned orders of the Appellate authority reducing the penalty and order of the revision authority upholding the order of the Appellate authority, has contended gist of which are hereunder:
(i) There was violation of principles of natural justice by not producing PW-III a civil driver during enquiry
(ii) Charge against the petitioner was misconduct, dereliction to duty, gross negligence and an act of unbecoming of a member of disciplinary force of the union like CISF, which could not be established by the authority.
(iii) There was violation of various provisions of regulation relating to disciplinary proceeding.
(iv) Previously the petitioner was awarded one punishment by order dated 13.10.1997 for gross negligence of duty.
(v) Impugned punishment is disproportionate to the gravity of misconduct.
Learned Advocates appearing for the petitioner, in support of their contention have relied on a decision in the case of Ombir Singh -vs- Union of India & Ors. (2018) 1 CAL LT 556 (HC) and an unreported decision of this Court dated 27th November, 2017 in W.P. No. 21196 (W) of 2017 (Sima Dutta -vs- The Central Bank of India & Ors.).
Learned Advocate appearing for the respondents has opposed this Writ Petition by contending as follows:
(i) All the statutory formalities has been observed in course of disciplinary proceeding.
(ii) Principles of natural justice has been observed and all relevant provisions has been complied in course of the disciplinary proceedings and imposed punishment is proportionate to the nature of misconduct.
(iii) Nature of disputes involved in the Writ Petition is nothing but an attempt of re-appreciation of evidence by the Writ Court.
(iv) In support of his contention he has relied upon the decisions reported at (i) (2015) 2 SCC 610 (Union of India -vs- P. Gunasekaran); (ii) State Bank of Bikaner & Jaipur -vs- Nemi Chand Nalwaya) reported at (2011) 4 SCC 584 and (iii) Central Industrial Security Force and Ors. -vs- Abrar Ali reported at (2017) 4 SCC 507.
Now I would like to deal with the decisions cited by the parties hereunder. The case of Sima Dutta (unreported) (supra) relied upon by the petitioner is distinguishable and is not applicable to the facts of the present case as would appear from the relevant paragraphs of the said decision recorded hereunder:
".............. One wonders why the petitioner should be guilty in respect of an allegedly fake and false certificate issued by the Madrasah. I, for one, do not seemingly find any rationale for holding the petitioner guilty for the certificate being issued by the High Madrasah without any proof or evidence that the petitioner was the instrumental for the same. It has not been the finding of the enquiry officer that the certificate issued by the High Madrasah was subsequently fabricated or interpolated by the petitioner. The enquiry officer did not even call for the relevant register from the High Madrasah and, therefore, the enquiry officer had no opportunity to compare the certificate issued by the school with the original register and to come to a conclusion about its genuineness. But without undertaking any such exercise, the enquiry officer had nonetheless come to the conclusion that the certificate was fake and false. He has also recorded that after going through the evidence and the written briefs, he found the certificate to be not genuine. And this finding is again without reasons.
The report of the enquiry officer is out and out a non-speaking one without disclosing any reason for the conclusion reached by him. It is not expected of an enquiry officer discharging a quasi-judicial function that such conclusions would be reached with the suddenness of its sort and so abruptly. An enquiry officer does not discharge his duty properly if he merely says that he has gone through the documents and has come to the conclusion. Such an exercise by the enquiry officer must be described as a failure to discharge his duties; it is in fact a serious dereliction of duty as an independent enquiry officer. It is his duty to give reason for the conclusion he has arrived at based on the evidence adduced and produced.
The judgment in the case of The Oriental Insurance Co. Ltd (supra) relied upon by the petitioner is mainly on the issues of violation of principles of natural justice and on proportion of the punishment to the nature of misconduct which according to me does not help the petitioner since on perusal of record available in the instant case I do not find any violation of principle of natural justice and punishment is proportionate to the nature of misconduct and it is not shocking to the conscious of the Court. With regard to the allegation of non-production of the civil driver PW-III, it appears from record that the respondents made three attempts to bring the PW-III and furthermore with the consent of the petitioner disciplinary proceeding was proceeded further and there is an endorsement of consent by the petitioner in this regard. So far as allegation of punishment as disproportionate to the gravity of the misconduct I find that the appellate authority after taking into consideration all the relevant facts has already reduced the penalty by taking a very fair and reasonable stand. The decision relied on behalf of the respondents in support of his contention with regard to the ambit and scope of interference and adjudication by the Writ Court under Article 226 of the Constitution of India involving disciplinary proceeding and punishment I have considered the decision of the Hon'ble Supreme Court in the case of P. Gunasekaran (supra) relevant paragraphs 12, 13, 14, 15 and 20 of the said judgment is hereunder.
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
(a.) the enquiry is held by a competent authority; (b.) the enquiry is held according to the procedure prescribed in that behalf;
(c.) there is violation of the principles of natural justice in conducting the proceedings;
(d.) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e.) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f.) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g.) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h.) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i.) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao, many of the above principles have been discussed and it has been concluded thus:
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
"15. In State of Andhra Pradesh and others v. Chitra Venkata Rao, the principles have been further discussed at paragraph-21 to 24, which read as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that[pic]an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. (See Syed Yakoob v. K.S. Radhakrishnan.)
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.""
"20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
Paragraph 14 of the decision in the case of Abrar Ali (supra) is also relevant which is hereunder:
"14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya , this Court held as follows:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India, Union of India v. G. Ganayutham, Bank of India v. Degala Suryanarayana and High Court of Judicature at Bombay v. Shashikant S. Patil.""
Considering the submission of the parties, relevant records and taking into consideration the judgments relied upon by the parties I am of the considered view that in this case there is no violation of principles of natural justice and there is concurrent finding of misconduct by all the three authorities below based on evidence and there is no violation of any specific provision of the relevant rules and regulations of the disciplinary proceeding and the punishment imposed in this case is reasonable and not shocking to the conscious of the Court.
In view of the foregoing discussion and I am not inclined to interfere with the impugned orders of punishment Writ Petition W.P. No. 29124 (W) of 2014 is accordingly dismissed. There will be no order as to costs.
Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(MD. NIZAMUDDIN, J.)